Water Abstraction

Table of Contents

Updated Provision

The primary purpose of the Water Environment (Abstractions and Associated Impoundments) Act 2022 is to provide for a modern registration, licensing and control regime for water abstractions. The proposed system of registration and licensing is to be administered by the Environmental Protection Agency, with local authorities also maintaining an ongoing enforcement role.

The legislation transposes requirements under the EU Water Framework Directive for controls over, and the prior authorisation of, abstraction of surface water and groundwater, and impoundment of surface water, and responds to infringement proceedings initiated by the European Commission.

The Act;

Modernises the regime for water abstractions which is outdated and limited in scope, being based on legislation enacted in 1942 and 1964;
Provides for a simple registration system for water abstractions, subject to minimum threshold where registration is not required;
Provides a licensing regime, administered by the EPA, for water abstractions over a specified threshold;;
Provides an updated power for Uisce Eireann/Irish Water, as the national authority for water services, to take abstractions, subject to EPA licensing, and also subject to an appeal to An Bord Pleanála in relation to possible impacts on third party water Emergency powers will be available to Uisce Eireann/Irish Water to take abstractions where required due to drought or other stated reasons;
Provides for compensation for material adverse effects caused by interference with water rights as a result of a public abstraction;
Makes specific provision to allow Uisce Eireann/Irish Water abstract water from ESB reservoirs with the agreement of the ESB,
Gives specific recognition and protection for canals and other navigable waters under the control of Waterways Ireland; recognises the role of the ESB and Waterways Ireland.
Gives necessary environmental protection to water

Abstractions

The Minister shall make regulations to regulate abstractions that do not require a licence and abstractions where a licence application is pending. Contravention of the regulations is an offence, for the review of the operation of the regulations and for consultation with the EPA in carrying out a review of the regulations.

There is regulation making power of the Minister in relation to public abstractions under Chapter 1 and temporary and emergency abstractions under Chapter 2 of Part 6.

The Minister has the power to exempt certain abstractions or activities from the regulations under where they are satisfied it will have no significant impact on surface water or groundwater status.

The Minister may consult with the EPA before making regulation. It contains detail on what abstractions or activities may be exempted, and it lists matters that may be provided for in regulations. Contravention of these regulations is an offence.

The register of abstractions to be kept by the EPA and details of that register including; what shall be contained in the register, the form in which the register will be maintained, matters that the Agency will record in the register in relation to an entry e.g. recording changes in circumstances that have a bearing on the entry, a surrender or transfer of a licence etc., that the register shall be kept at the principal office of the Agency, and specifies how the register shall be shared or may be published.

Submission of information to the Agency

A person who carries out an abstraction above the registration threshold is to give notice to the EPA, and that it the notice shall include information in respect of each abstraction point used for the abstraction. Where provides that where an abstraction and its associated impoundment are operated by different persons the information shall be provided to the Agency either jointly by both persons, or by the person carrying out the abstraction on behalf of both persons, but that either way both parties are jointly and severally liable for the accuracy of the information.

The EPA is to issue a registration number for an abstraction. There are requirements to submit information to the EPA where an abstraction is transferred from one person to another, or where an abstraction is ceased. Registration of an abstraction may not be construed as authorisation. Non- compliance is an offence.

The Agency may request from a person carrying out an abstraction, and notification requirements where material changes to the abstraction occur, including where a licence has been granted in relation to the abstraction. It shall be an offence not to comply with the requirements. Entries in the register, and copies of entries, shall be received as evidence in any legal proceedings..

Compensation

There is a right for a person whose right, title or interest in an easement, way-leave, water right, fishing right or other right over or in respect of water has been materially adversely affected by the carrying out of a public abstraction, to claim compensation from Uisce Eireann/Irish Water. It provides that a claim for compensation shall be made within 52 weeks, however the High Court may extend this period upon application.

The Act sets out the manner in which a claim for compensation is to be determined. Claims for compensation will be determined via arbitration in the absence of agreement. Arbitration will be held under the Acquisition of Land (Assessment of Compensation) Act 1919 and relevant section of the Land Clauses Consolidation Act 1845. The Act sets out the rules the arbitrator shall apply and their powers in relation to the making of an award.

The Act provides for the rules on recovery of compensation, by applying the relevant sections of the Land Clauses Consolidation Act 1845. Costs and expenses payable by Uisce Eireann/ Irish Water are recoverable from Uisce Eireann/Irish Water as a simple contract debt in a court of competent jurisdiction.

Where Uisce Eireann/Irish Water has previously paid compensation for interference with a person’s rights under of the Water Services Act 2007, Chapters 1 and 2 of Part 6 of the Act, section 4 of the Local Government (Sanitary Services) Act 1964 or sections 14 and 15 of the Water Supplies Act 1942, a person may only claim compensation in relation to damage suffered in consequence of the public abstraction for which they were not otherwise compensated previously.

Temporary abstraction

Uisce Eireann/Irish Water may take immediate action to carry out a temporary public abstraction to maintain a public supply of water where there is a risk to the supply of public water or to human health and safety, from a number of listed causes. Uisce Eireann/Irish Water may enter onto land to conduct such temporary abstractions and operations required to carry out the abstraction.

There are requirements for notification by Uisce Eireann/ Irish Water where it intends to carry out a temporary abstraction. Notification is required as soon as may be, or where that is not practical, within 48 hours of the commencement of the abstraction. There are requirements in relation to the contents of the notice and its publication. The Agency may require Uisce Eireann/Irish Water to submit further information in relation to the temporary abstraction.

A temporary abstraction may only be carried out for 8 weeks, with the possibility of a single 8 week extension upon notice to the persons given a notice. Should the extension not be agreed to, Uisce Eireann/Irish Water may apply to the District Court for an order to extend.

Classes of temporary abstraction, may not commence until a licence has been granted. It is also provided that the Agency shall assess a temporary abstraction of a class specified to determine if an EIA is required, and may assess other abstractions under this section also. The Agency will give priority to assessment of temporary abstractions where necessary.

Emergency abstraction

Uisce Eireann/Irish Water may take immediate action to carry out an emergency abstraction where it is of the opinion that there is a serious risk to public water supply or human health so severe as to constitute a Civil Emergency in accordance with the EIA Directive. Uisce Eireann/Irish Water may enter land and undertake the activities specified

The contains the notice provisions in relation to an emergency abstraction. Uisce Eireann/Irish Water must notify the Agency of the abstraction 24 hours prior to its commencement and to the notice parties within 48 hours of commencement. The Act contains the requirements in relation to the contents of the notice, publication of the notice and provision of further information required by the Agency.

Where Uisce Eireann/Irish Water intends to carry out an emergency abstraction, it must apply to the Minister for an exemption from the requirements of part 5 including the carrying out of an EIA. The application must be made no later than 24 hours after the commencement of the abstraction. The Minister is required to consider this application and make an order, following consultation with the Agency, within 7 days.

The Minister may make an order, or not, exempting the emergency abstraction from any or all requirements under part 5, on the basis that there is a civil emergency, the abstraction is for the sole purpose of responding to the emergency and would be hindered by the requirements of part 5 and/or the carrying out of an EIA. This exemption will be for 8 weeks with the possibility of a single extension of no more than 8 weeks. Where the Minister declines to make such an order, an abstraction shall be considered to be a temporary abstraction

Appeal against notice of temporary abstraction

A person given notice of a temporary abstraction may appeal to the District Court against the notice within 14 days, on a list of grounds. The appeal shall not suspend the operation of the notice, unless the appellant applies for the notice to be suspended and the Court orders that the notice be suspended until the appeal is determined.

Compensation for temporary or emergency abstraction

There is a right to compensation for damage to or interference with land, or material adverse effect on rights, titles or interests in easements, way-leaves, water rights, fishing rights or other rights over or in respect of water, in consequence of the carrying out of a temporary or emergency abstraction by Uisce Eireann/Irish Water.

A claim for compensation is to be made within 52 weeks. There are provision applied as to

(Determination of claim for compensation),
(Recovery of compensation), and
(Double Compensation)

to claims for compensation as a result of temporary or emergency abstraction by Uisce Eireann/Irish Water.

Abstraction from reservoirs of Electricity Supply Board

There may be agreements between Uisce Eireann/Irish Water and the ESB governing the abstraction by Uisce Eireann/Irish Water from ESB reservoirs. The Minister has the power, following consultation with the Minister for Environment, Climate and Communications, to direct Uisce Eireann/Irish Water and ESB to enter such an agreement.

The Agency will only consider a licence application from Uisce Eireann/Irish Water, for an abstraction from an ESB reservoir, where a water abstraction agreement between Uisce Eireann/Irish Water and ESB is provided to it. The ESB shall not pay compensation where Uisce Eireann/Irish Water has already paid compensation.

Waterways Ireland

Abstraction from navigable waters

There is provision for an application for a licence to abstract from navigable waters. The Agency shall notify Waterways Ireland, and Waterways Ireland may give its opinion as to whether the abstraction would pose a material risk or impediment to navigation of the navigable water. The section provides for consultation with Waterways Ireland in relation to licence determinations.

There is provision for abstraction from canals will only be with the agreement of Waterways Ireland, and that any licence applications will only be considered by the Agency where the applicant provides said agreement with Waterways Ireland, to the Agency. The Agency will consult with Waterways Ireland in relation to the licence application and conditions to be attached to the licence.

Operation of navigable water by Waterways Ireland

The Act does not operate to limit the functions of Waterways Ireland. In considering a licence application from Waterways Ireland that is necessary for the management, operation or maintenance of a navigable water or canal, the Agency shall have due regard to the functions of Waterways Ireland and the need to protect navigation.

The Agency shall have regard to the functions of the ESB when considering an application for a licence relating to abstract in association with a hydro-electric scheme. The Act sets out when the Agency will grant a licence and states that the Agency will not attach any conditions that would affect the performance of the functions of the ESB such as to compromise the safety of a hydro-electric scheme. Each hydro-electric scheme will be regarded as a single abstraction, and only one licence may be granted for the purposes of each scheme.

Enforcement

There are provision for the power of the Minister to make regulations providing for the undertaking of environmental inspections by the Agency or Local Authorities.

The local authority has responsibilities and functions of a local authority in relation to environmental inspections and ensuring compliance with the regulations, relating to abstractions below the licensing threshold or those with pending licence applications.

A local authority mayappoint an authorised person or persons for the performance of its enforcement functions under this part. The Agency may carry out environmental inspections and take measures to ensure compliance with the Act and regulations, other than those that are the jurisdiction of a local authority.

There is power for the Agency to appoint an authorised person or persons to perform its enforcement functions under the Act and regulations. Authorised persons appointed by a local authority or the Agency may enter certain premises for the performance of their functions.

The powers if an authorised person having entered a premises in the performance of their functions include inter alia; inspecting and taking copies of records; inspecting an abstraction, works and equipment; taking samples, taking any actions deemed necessary for conducting an environmental inspection; and, requiring a person to provide their name and address where the authorised person believes the person has committed an offence.

An authorised person may not enter a dwelling without the consent of the occupier or a warrant.

Compliance notice

A local authority may issue compliance notices to persons carrying out an abstraction in its administrative area, in order to prevent or limit the failure of a water body to meet its environmental objectives. These notices may be issued in relation to unlicensed abstractions that fall under the relevant regulations

The Agency may issue compliance notices where necessary to prevent or limit the failure of a water body to meet its environmental objectives. These compliance notices relate to licensed abstractions not falling under the local authority regulations.

The compliance notice will include requirements on the person carrying out an abstraction to take specified measures to prevent or limit the failure of a water body to meet its environmental objectives. This can include a requirement to suspend or cease the abstraction and/or the requirement to mitigate or remedy the effects of the abstraction.

It is provided that a person who does not comply with a compliance notice shall be guilty of an offence, and that in the case of noncompliance the local authority or the Agency may take any measures considered necessary to protect or restore the water body or measures to mitigate or remedy environmental effects of the abstraction.

There is a right of a person to appeal to the District Court against a compliance notice. This appeal must be made within 28 and days and will not operate to suspend the compliance notice, unless ordered by the District Court on application by the appellant. The District Court may confirm the compliance notice with or without modification, or discharge it. The Agency is entitled to appear and produce evidence on the hearing of the appeal.

The Agency may, where a person fails to comply with a compliance notice, apply to the Circuit Court for an order requiring the person to comply with the compliance notice.

Offences

It is an offence;

the knowing or reckless provision of false or misleading information to the Agency or a local authority under the Act.
obstructing or interfering with an authorised person or member of An Garda Síochána when exercising their powers
failing or refusing to comply with a direction of same

There are penalties to be applied for the offences throughout the Act.In certain circumstances individuals within a body corporate, as well as the body corporate itself, may be guilty of an offence committed by a body corporate and be proceeded against and punished for the offence.

The Act provides for an offence for continuing to contravene a compliance order on each day the failure to comply continues, following conviction of an offence under the Act. It provides for a penalty of a Class A fine on each day the noncompliance continues.

A local authority may take a prosecution for an offence under the relevant regulations. There is an offence in relation to a compliance notices issued by the local authority.

The court may order the payment of costs and expenses to the local authority by a person convicted of an offence. It also provides for the court to order that the amount of any fines imposed by the court be paid to the local authority, on the application of the local authority.

The Agency may take a prosecution for most offences or an offence in relation to a compliance notice issued by the Agency. The court may order the payment of costs and expenses to the Agency by a person convicted of an offence. It may order that the amount of any fines imposed by the court be paid to the Agency, on the application of the Agency.

Ministerial Policy Directives

Minister may give general policy directives to Agency

The Minister has he power to give the Agency general policy directives, having regard to certain listed matters, and may amend or revoke such directives. These directives will be laid before the Oireachtas and will not give the Minister control over the performance by the Agency of its functions under the Act.

Older Provisions

Uisce Eireann/Irish Water may continue to abstract for the purposes of water supply under the terms of its proposal made under the 1942 Act, until the Agency has made a decision to grant or refuse a licence for the abstraction, or in the case of an appeal, until a court has made an order on foot of that appeal. Subsection 2 requires Uisce Eireann/Irish Water to apply for a licence under the Act for any abstractions operating under the 1942 Act, that would require a licence under section 15. The provisions relating to compensation under the 1942 Act shall apply to any compensation claims made but not yet determined at the commencement of the Act.

A water agreement under the Act of 1964 shall be deemed to be a water abstraction agreement (an abstraction agreement between Uisce Eireann/Irish Water and ESB), subject to any necessary modifications.

An abstraction registered under the Regulations of 2018 will be deemed to have complied with the requirements in relation to registration under part 4 of the Act, and be deemed to be entered into the register. Registration numbers from the Regulations of 2018 will be carried over to the register under the Act, and a notification made under the Regulations 2018 made prior to the revocation of those regulations will be treated as a submission of information under the Act.

Bye-laws made under the Canals Act are also subject to the requirements of the Act.

The Act amends the Shannon Navigation Act to ensure that abstraction by Waterways Ireland from navigable water that does not form part of a canal as defined in the Act, is subject to the requirements of the Act. The bye-laws relating to abstraction, made under the Shannon Navigation Act, are subject to the Act.

Planning and Abstraction Licence

A Planning Authority register of all lands in its functional area shall contain an entry where a development comprises or is for the purpose of an activity that requires an abstraction licence,

Where a development relates to an activity requiring an abstraction licence, the planning authority shall take into consideration that the control of abstractions is a function of the Agency.

Before a planning authority makes a decision on proposed development for the purposes of which an abstraction licence is required, that the Board may request observations from the Agency.

The Board is not to attach conditions for the purpose of the control of an abstraction to a grant of permission for development for the purposes of an activity for which an abstraction licence is required.

There is provision for “Environmental impact assessment relating to abstractions”. There is coordination with the EPA in relation to EIAs as detailed in part 5. Tthe Board shall not include conditions relating to the control and operation of an abstraction, where an application relates to an activity requiring an abstraction licence. The Board may reject an application where proposed development would be inconsistent with the objectives of a River Basin Management